Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. JV14811
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
P.M., a minor, appeals from the juvenile court’s adjudication and disposition after it sustained a Welfare and Institutions Code section 602 petition that charged him with receiving stolen property. (Pen. Code, § 496, subd. (a).) Appellant contends that the juvenile court erred by failing to declare whether his offense was a felony or misdemeanor. We must agree and remand to the juvenile court.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
We need not set forth the facts of the underlying offenses given the nature of the issue on appeal. It should suffice to say that a section 602 petition was filed against appellant, asserting one felony count of receiving stolen property (Pen. Code, § 496, subd. (a)). After a contested jurisdiction hearing, the juvenile court sustained the petition. After the juvenile court sustained the 602 petition at the jurisdiction hearing, the following exchange occurred:
“[DEFENSE COUNSEL]:... And I will ask if the [c]ourt is willing to entertain this now, that based on the low value of the items, I believe it was $16 in the police report, that under [Penal Code, section] 17(b) this matter be reduced to a misdemeanor.
Penal Code section 17, subdivision (b), provides: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison. [¶] (2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor. [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. [¶] (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. [¶] (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”
“THE COURT: That motion is denied. You can certainly reassert it at the time of sentencing. I’d like to see a probation report
“[DEFENSE COUNSEL]: All right.
“THE COURT: – and evaluate that.”
On May 6, 2008, a section 777 petition was filed, alleging appellant had violated probation by possessing marijuana. Appellant admitted this charge. On May 7, 2008, the juvenile court conducted a disposition hearing and ordered appellant placed in a residential treatment center. This timely appeal followed.
Appellant was first adjudged a ward of the court on March 7, 2007, based on a sustained petition for misdemeanor petty theft (Pen. Code, § 484, subd. (a)).
II. DISCUSSION
Because the crime of receiving stolen property, if committed by an adult, is punishable as either a felony or misdemeanor (Pen. Code, § 496, subd. (a)), appellant contends the juvenile court erred by failing to explicitly characterize the offense pursuant to section 702. Section 702, in relevant part, provides: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” (Italics added.)
The section 702 declaration is mandatory. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) “The language of the provision is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. [Citations.]” (Ibid.) “[N]either the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony.” (Id. at p. 1208.)
Appellant has not forfeited his section 702 argument by failing to raise it below. (See In re Manzy W., supra, 14 Cal.4th at pp. 1204-1205, 1210 [“the juvenile court did not at any time refer to its discretion to declare the offense a misdemeanor. Nor did the prosecution or [defense] counsel point out to the juvenile court that it had such discretion”]; In re Ricky H. (1981) 30 Cal.3d 176, 190-192 [remanding for § 702 determination despite failure to address issue on appeal].) The authority cited by the People does not provide that the juvenile court’s section 702 obligations can be forfeited. (See Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 123 [“When evidence is adduced upon the theory that it will be properly connected, subject to a motion to strike, and that motion is not subsequently urged, a party is deemed to have waived the objection thereto”]; People v. Moore (1954) 43 Cal.2d 517, 523 [“ ‘ “Where the court rejects evidence temporarily or withholds a decision as to its admissibility, the party desiring to introduce the evidence should renew his offer, or call the court’s attention to the fact that a definite decision is desired” ’ ”]; People v. Hunt (1982) 133 Cal.App.3d 543, 556.)
In this case, the juvenile court did not explicitly declare appellant’s offense a felony or a misdemeanor. However, remand is not necessarily “ ‘automatic’ ” when the juvenile court fails to make a declaration under section 702. (In re Manzy W., supra, 14 Cal.4th at p. 1209.) The Supreme Court has stated that “speaking generally, the record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error.” (In re Manzy W., supra, 14 Cal.4th at p. 1209; see also In re Eduardo D. (2000) 81 Cal.App.4th 545, 549, overruled on other grounds by In re Jesus O. (2007) 40 Cal.4th 859, 867.)
“A wobbler is any crime that may be punished as either a misdemeanor or a felony.” (People v. Arroyas (2002) 96 Cal.App.4th 1439, 1443, fn. 3.)
The record in this case does not conclusively establish that the juvenile court exercised its discretion to declare appellant’s offense a felony or misdemeanor under section 702. The circumstances are similar to those requiring remand in In re Manzy W., where the minor admitted possession of a controlled substance, a wobbler offense that had been charged as a felony. (In re Manzy W., supra, 14 Cal.4th at pp. 1202, 1210.) The probation report referred to the offense as a felony and stated the maximum term was three years. Neither the report, nor the prosecutor or minor’s counsel, advised the court that the offense could be declared a misdemeanor. (Id. at pp. 1202-1203, 1210.) The juvenile court did not refer to its discretion to declare the offense a misdemeanor; nor did it indicate it had considered a lesser term of confinement by treating the offense as a misdemeanor. (Id. at p. 1210.) Instead, the court committed the minor to a felony term. (Id. at p. 1203.) The Supreme Court observed that “[n]othing in the record establishes that the juvenile court was aware of its discretion to sentence the offense as a misdemeanor rather than a felony.” (Id. at p. 1210.) Therefore, the matter was remanded for a declaration under section 702. (Id. at p. 1211.)
We are not persuaded by the People’s attempt to distinguish In re Manzy W. The People argue that appellant, by making a motion pursuant to Penal Code, section 17, “asked the court to exercise its discretion to reduce the offense, and the court, well aware of that discretion, declined to do so.” However, nothing in the exchange regarding appellant’s Penal Code, section 17 motion indicates that the juvenile court was aware it had discretion, under section 702 , to declare a wobbler to be either a felony or a misdemeanor. Even if this excerpt suggests an awareness of such discretion, the record does not indicate the court, in fact, exercised that discretion. (See In re Manzy W., supra, 14 Cal.4th at pp. 1207, 1209 [purpose of section 702 is to ensure juvenile court is aware of, and actually exercises, its discretion]; In re Jorge Q. (1997) 54 Cal.App.4th 223, 238 [“The record must demonstrate the exercise of discretion.”].) Although defense counsel’s section 17 motion was denied, the court invited him to reassert the motion at the disposition hearing, after it had reviewed the probation report. There is nothing in the record showing that the court fulfilled its deferred obligation.
Thus, the People’s reliance on In re Jacob M. (1989) 210 Cal.App.3d 1178 is misplaced. In that case, the juvenile court had entered a minute order stating that the “ ‘court now designates Count 2 (459 [Pen. Code] second degree) to be a felony with a maximum treatment period of 3 years.’ ” (Id. at p. 1179.) The reviewing court held that “ ‘all that is necessary for the record on review is a declaration by the court as to whether the offense is a misdemeanor or felony.’ ” (Id. at pp. 1181-1182.) Because both the minute order and the transcript indicated “the court’s awareness of its discretion and its exercise of that discretion,” the judgment was affirmed. (Id. at p. 1182.)
The People argue that “it is not reasonably probable a different result would occur upon remand” because “[t]he probation report supported the court’s exercise of discretion, showing appellant to be a high risk, remorseless, substance abuser in need of residential treatment.” This is not the test. We can consider the court’s error to be harmless when “the record in a given case [shows] that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler.” (In re Manzy W., supra, 14 Cal.4th at p. 1209.) The record is ambiguous. We must therefore remand this matter to the juvenile court to allow it to make the necessary designation. (Id. at pp. 1210-1211.)
III. DISPOSITION
The matter is remanded to the juvenile court to allow the court to exercise its discretion to determine whether appellant’s violation of Penal Code section 496, subdivision (a), was a misdemeanor or felony. The court shall recalculate the maximum period of confinement as necessary in accordance with its determinations. In all other respects, the judgment is affirmed.
We concur. JONES, P.J.,NEEDHAM, J.